Almost half WA workers still covered by State system

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Almost half WA workers still covered by State system

WA IRC Chief Commission Tony Beech has told a conference in Perth that about 40% of WA workers were still under the State IR system despite the introduction of the national WorkChoices scheme

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WA IRC Chief Commission Tony Beech has told a conference in Perth that about 40% of WA workers were still under the State IR system despite the introduction of the national WorkChoices scheme.

The Unions WA website reports that Beech said that determining precise numbers was obviously difficult, with complicating factors including that a considerable number of employers and employees had moved to the federal system to avoid the 1993 state workplace agreements legislation.

(Ironically, the move to the federal system was to avoid a State system under the previous Liberal Government that had similarities with WorkChoices.)

But drawing on 2004 ABS figures, Beech said WA employment was broken into the following segments: incorporated business (46.6%); unincorporated business (31.5%); Australian government (2%); state government (8.6%); state government corporations (8.5%), and local government (2.9%).

Adding the unincorporated business and state government employees together meant 40.1% of employees were likely to have effectively remained under state IR law.

NSW example may add to numbers

He said that if the WA Government followed NSW in removing employees from State government owned corporations employment and returning them to direct state government employment, then that would add a potential further 8.5% of employees who may be covered by the state system.

That would mean that approximately 49% of the state’s employees might not be covered by WorkChoices.

And, he said, the 46.6% of incorporated business in WA may not all be covered by Work Choices. Not all state government corporations might be covered either.

The test for coverage

Beech said the test of whether an employer is or is not a constitutional corporation is not whether it is ‘incorporated’, but whether its trading or financial activities form ‘a substantial or significant part of its overall activities’.

He said not all corporations will be trading, financial or foreign corporations, although most at likely to be so, and so the figure of 46.6% may be too high.

Chief Commissioner Beech said if there was a dispute about whether an employer fell within the WorkChoices definition, or the effect of provisions excluding the State IR Act, there would need to be a formal finding of fact by the AIRC. That would usually involve a hearing, with any decision likely to be taken to the WA Industrial Appeal Court - a lengthy process.

Then there was the States’ High Court challenge, which placed a large question mark over Work Choices.

Practice of WA IRC

Chief Commissioner Beech said the WA IRC would, for the present, continue to receive applications even if it looked like it may not have the jurisdiction to enquire into and deal with them.

‘An applicant may wish to argue that we do have jurisdiction because Work Choices is unconstitutional and, depending upon the outcome of the High Court challenge, the application may be valid,’ he said.

‘An applicant may wish to argue that a particular employer, even one that is incorporated, is nevertheless not a trading, financial or foreign corporation and it is business as usual. We cannot forecast what an applicant may wish to argue in support of the application, he said.

‘Until a binding decision tells us otherwise, we will continue to deal with matters concerning employers who are partnerships, sole traders or trusts and so on, and concerning the state government as employer.

‘We will register agreements involving those employers. We will continue to settle disputes brought to us involving those employers. We will continue with the State Wage cases. We will continue to vary awards when asked to do so; although they will no longer apply to employers of constitutional corporations and their employees, they may well still apply to employers who are not covered by WorkChoices.’

Chief Commissioner Beech said the IRC decided claims on the evidence and submissions made at the time. If setting the wage rates at a particular level would place state-covered employers at a competitive disadvantage compared with competitor employers in the federal system, ‘this needs to be shown to the Commission and we will take that evidence into account with all of the other evidence’.

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